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Decisions – COA – April 4, 2017

Stanley Ross Strickland v. State of Mississippi – statutory rape – Strickland was convicted in Neshoba County of two counts of statutory rape involving his daughter. He had sex with her over two nights and was discovered when the girl’s mom found suggestive text messages on her phone. On appeal Strickland raises only sufficiency/weight of the evidence issues. The COA affirms.

Dwight Nelson v. State of Mississippi – sexual battery – Dwight Nelson was convicted in Simpson County of sexual battery and touching a child for lustful purposes. Ten year old J.S. told her mother that she had been raped by her mother’s uncle Dwight Nelson. On appeal he argues ineffective assistance. The COA finds the record not sufficiently developed to address ineffective assistance on direct appeal. He claims the verdict was against the weight of the evidence. The COA finds no error. He claims the indictment was defective for not providing specific dates of the abuse. But “Nelson offered testimony in direct contradiction to the victim’s assertion that Nelson was able to commit sexual battery during that time” and, thus, “the indictment’s lack of specificity did not prejudice Nelson’s ability to establish his defense. He also challenges the court’s ruling on the tender years exception and the court’s allowing a nurse who was an expert in sexual assault testify. The COA affirms.

Jeffrey Lance Hill v. State of Mississippi – firearm on school property – Hill was a student at MSU and a resident of the Aiken Village student apartment complex when he was found to have a gun on him in violation of MCA 97- 37-17. He had a WWII rifle. At trial his defense was that he was not aware that the apartment complex was considered school property. On appeal, appointed counsel filed a Lindsey brief. Hill filed a brief raising 47 issues (Hill is the client from hell). Most are procedurally barred. The COA affirms.

Richard and Jamie Rosebur v. State of Mississippi – firearm enhancement – Brothers Richard and Jamie Rosebur and James Jiles were indicted for shooting into a dwelling. The Roseburs were found guilty. On appeal they take issue only with the trial court’s use of a firearm enhancement to double their sentence to ten years. “The Roseburs argue that the firearm enhancement violates the protection against double jeopardy because it is impossible to shoot a gun into a dwelling without also using and displaying the same gun.” The COA notes that this issue has been rejected previously and has been decided by the Miss.S.Ct. in Taylor v. State, 137 So. 3d 283 (Miss. 2014).

Deveaux Carter v. Allen Davis – credits for child support – Deveaux and Allen were divorced in 1993. They agreed Deveaux would have custody of the two children. In 1998, they agreed to child support of $400 a month and Allen was to pay an arrearage of over $22,000. In 2013, Devaux filed a motion for contempt claiming that Allen was in arrears for back child support of over $23,000, interest of over $35,000, $88,000 in college expenses, $12,000 in medical expenses, etc. At trial, the court credited Allen with payments made by his mother to the tune of $197,911. That left $3,276.66 owed by Allen along with $7500 in attorneys fees. Deveaux appealed arguing that Allen should not be given credit for payments made by his mother. However, the mother testified she would not have made those payments if Allen had been able to. She also argues that Allen should not have been given credit for direct payments he made to his daughters. The COA finds no error. Allen cross appeals arguing that he was not in willful contempt. The COA agrees and finds that Allen should not have been ordered to pay Deveaux’s attorneys fees. Devaux requests attorneys fees on appeal which the COA denies.Rita Bradley v. John Donald Motes – custody modification – Rita and John were divorced in 2009. Rita was awarded primary custody of their two children, JHM and LHM. In 2013, John requested a modification of custody of the two children. The chancellor awarded primary custody of LHM to John for the remainder of the summer. Primary custody of JHM remained with Rita. The chancellor later recused herself. The newly assigned chancellor allowed the children to stay where they were. WHen the trial finally occurred in 2014, JHM was fifteen and LHM was fourteen. JHM elected to live with Rita, and LHM elected to live with John. The court held “that the ongoing medical and emotion[al] problems both children [were] going through [was] a material change in circumstances that adversely affect[ed] the minor children and it [was] in their best interest that custody be changed.” LHM was awarded to John and JHM remained with Rita. Rita appealed. The COA affirms.

Damion Leqeuinn Lewis v. State of Mississippi – domestic violence – Lewis was convicted of felony aggravated domestic violence. He and his wife Rosa were separated but agreed to go out one night. On the way home they argued and back at the house Damion beat Rosa up injuring her ear, face and neck. Her eardrum was punctured and she was strangled. On appeal he argues weight and sufficiency of the evidence. The COA finds no error. He also argues that the jury instructions were confusing in differentiating between felony and misdemeanor domestic violence. The jury had come back with a verdict that could be read as either felony or misdemeanor assault. They trial court sent them back in with instructions to return with a verdict in its proper form. The COA affirms.

Justin Johnston v. State of Mississippi – reclassification – Johnston was indicted for sexual battery and statutory rape. In 2008 he pleaded guilty to statutory rape and was sentenced to thirty years. In 2016 he filed a petition to have his conviction classified as a nonviolent offense and to have the court recommend he be considered for parole. The court found that it did not have the authority to reclassify Johnston’s offense and denied relief. On appeal the court notes that House Bill 585 created MCA section 97-3-2 which defined crimes of violence. Statutory rape was listed as a crime of violence, “but this classification is rebuttable on hearing by a judge[.]” And another statute would allow a trial court to recommend for parole someone found guilty of a nonviolent crime who has served 25% of his time. The COA finds that there is nothing about the statute’s handling of sexual battery that would make it retroactive.

Bridget Warren Holman v. David Scott Holman – division of marital assets – Bridget and Scott married in 2003, had two kids and Bridget filed for divorce in 2013. Scott counterclaimed. After a trial in 2015, awarded Scott a divorce on the ground of habitual cruel and inhuman treatment. The chancellor awarded custody of the children to Bridget, divided the marital property, and ordered Bridget to pay Scott’s attorney’s fees for the child-abuse allegation that arose during trial when she testified about a spanking. Bridget hired a new attorney who obtained Scott’s payroll records indicating he had a retirement account that was not listed on his financial statement. Bridget asked for a new trial arguing that Scott misrepresented his income. That was denied. On appeal notes that Scott testified that his income fluctuated widely depending on sales. He also admitted to having a retirement account but did not know how much was in it. There was no evidence that Scott committed fraud on the court. However, since the trial court failed to classify the retirement account, the COA reverses and remands for a classification and division, if appropriate, of Scott’s retirement account. The trial court did not err in awarding Scott attorneys fees for responding to the unfounded abuse allegations but the trial court erred in awarding $15,000 without finding that the work was reasonable and necessary.

Peggy Thomas v. Dr. James Purdy – medical malpractice – Thomas underwent routine surgery to repair a prolapsed bladder. Afterwards she experienced post-surgical complications of sciatic nerve pain and foot drop and sued the surgeon. A jury found for Dr. Purdy and Thomas appeals. After Thomas complained of post-surgical complications, Purdy had her examined by two colleagues who concluded that Purdy did nothing wrong. Before trial, the court limited the testimony of these two: they could testify as to their observations but not testify regarding the standard of care or breach thereof. The parties agreed to admit the medical records of these two doctors but Thomas wanted the word “stretch” removed from them arguing that the records’ indicating that Thomas suffered from a stretch injury was outside the scope of a treating physician. The COA finds no error. “The use of the word ‘stretch’ does not speak to the causation of Thomas’s injury; rather, it is descriptive of the doctors’ opinions, stemming from their personal observations and analyses, as to what type of injury Thomas sustained.” She also takes issue with one of Dr. Purdy’s expert witnesses and argues that she should have been granted a continuance to allow one of her experts to testify. The COA affirms.

Arrisha Sampson v. MTD Products d/b/a Modern Line Product Company – workers comp. – Sampson worked for MTD Products as a production assembler – a job requiring her to stoop, kneel, crouch, and regularly lift and/or move items weighing ten to twenty-five pounds. In May 2012, a piece of galvanized steel fell and lacerated Sampson’s left ankle. She had surgery to repair a torn tendon and returned to work in January 2013. n April 2013, her doctor found her at maximum medical improvement with no restrictions, assigning her a two percent permanent medical impairment rating to her left lower extremity due to her work injury. The AJ found that Sampson had suffered a ten-percent industrial loss of use to her left lower extremity and would be entitled to proportional disability benefits. MTD appealed and the full Commission found that Sampson was only entitled to a two-percent industrial loss of use, consistent with the doctor’s two-percent permanent medical impairment rating. Sampson appeals. The COA affirms.

Glory Rigsby v. American Credit Counselors, Inc – forum selection clause – Glory Rigsby, sued American Credit Counselors Inc. on the grounds that she paid them more than a $1000 and received nothing in return (she was to pay ACC $116 per month for forty-eight months to pay off about $4,000 in unsecured debt to Wal-Mart, Old Navy, and Chevron.) The county court dismissed the case based on a forum selection clause and the circuit court affirmed. On appeal to the Court of Appeals, the COA reverses finding ACC’s requirement that it be sued in Florida is unenforceable. “The selected forum is so gravely difficult and inconvenient that [she would] for all practical purposes be deprived of [her] day in court.” The COA reverses and remands.